On
June 29, 2013, Russian President Vladimir Putin signed into law a bill
prohibiting “propaganda of non-traditional sexual relations among minors,”
including supportive statements about gay, lesbian, bisexual, and transgender persons.1 The legislation, which included
fines of up to one million roubles (equivalent to roughly $31,000 at the time
of passage) and possible jail time for offenders, sailed through the Duma on a
vote of 436-0 and the Federation Council on a vote of 137-0, with roughly
eighty-eight percent of respondents voicing support for the bill in public
polling.2

The outcry from human rights activists was swift. Some groups
staged disruptive protests,3 while others
used the fast-approaching Sochi Olympics to invite pressure from supranational
bodies, governments, corporations, and civil society, directed toward urging
Russia to repeal the law.4 Graeme Reid,
the director of the LGBT Program at Human Rights Watch, called the legislation
“regressive and discriminatory,” echoing condemnation from the European Union,
the Council of Europe, and the Venice Commission.5

Russia’s law sought to restrict gay advocacy in the name of
child protection—an effort with a longstanding historical pedigree and
contemporary resonance. Laws like the one in Russia are “child-protective” not
because of their actual empirical effects, but because their proponents deploy
the protection of children, whether rhetorically or out of genuine concern, as
a central justification for the laws’ existence. Some of the first efforts to
restrict gay advocacy in the name of child protection arose in the United
States and United Kingdom,6 and many of
these laws remain on the books.7 These kinds of
laws have been met with hearty approval in a range of other sociopolitical
contexts globally; Russia’s law was passed amidst a recent surge of proposed
child-protective propaganda laws in sub-Saharan Africa and across Eastern
Europe.8

By the time Russia’s federal legislation drew the ire of
activists around the globe, nearly identical laws had already been passed
across Russia, and lawmakers stated that they were necessary to protect minors.9 As President Putin objected to the
Associated Press:

[W]e have no laws against people with non-traditional
sexual orientation. . . . [Y]ou kind of create an illusion among millions of
spectators that we do have such laws, but we do not have such laws in Russia.
Russia has adopted the law banning propaganda of non-traditional sexual
relations among minors, but these are completely different things.10

Activists dismissed this distinction,
arguing that protecting children is a flimsy justification to crack down on
LGBT individuals.11 Yet the tension between these
competing understandings of Russia’s law is not new, and it persistently haunts
sexual rights efforts globally. Recent decisions by supranational bodies have
done little to relieve this tension, in part because they have failed to grasp
the most central interests at stake when child-protective laws are introduced:
the rights of children themselves.

In this Comment, I
argue that a stronger emphasis on children’s rights illustrates why
supranational human rights bodies should consider child-protective restrictions
on sexual rights presumptively invalid. In Part I, I chart the way in which the
idea of a tension between protecting children and respecting sexual rights
became firmly entrenched in human rights jurisprudence. In Part II, I look at
recent decisions by the U.N. Human Rights Committee (HRC)12
and the European Court of Human Rights (ECtHR)13
that attempt to navigate this tension. Finally, in Part III, I argue that
adjudicatory bodies have overlooked the already-recognized rights of children
themselves—rights that tip the balance
in favor of sexual rights claimants. In light of contemporary children’s rights
guarantees, states and supranational bodies should discard an approach that
pits the interests of children against the rights of LGBT adults in favor of a
more holistic assessment of the rights at stake. Such an assessment makes
apparent that child-protective restrictions on sexual rights cannot withstand
scrutiny by any institution that takes seriously contemporary human rights
guarantees.

I. state assertions of
child-protective rationales

Proponents of laws restricting LGBT advocacy have used
child-protective rationales before, insisting that the moral and physical
development of minors requires careful circumscription of discussions of
homosexuality and gender nonconformity. Opponents have portrayed these laws as
thinly veiled assaults on LGBT rights,14
but child-protective arguments in fact had meaningful support in human rights
jurisprudence of the 1970s and 1980s. The initial challenges to child-protective laws established the
principle that states enjoy some discretion in fulfilling their human rights
commitments in particular areas, including morality, and the repercussions of
these arguments resonate in the present day.

One of the
earliest and most doctrinally important cases on the protection of children’s
morals was Handyside v. United Kingdom,
decided by the ECtHR in 1976.15 In Handyside, the Court considered the legality of the United Kingdom’s
seizure of a book intended for schoolchildren, parts of which spoke frankly and
openly about homosexuality, sex, and drug use. The ECtHR ultimately deferred to
the United Kingdom’s regulatory powers in the realm of morality. Notably, it
began by finding that the aim of the judgment and the initial seizures of the
book—that is, “the protection of the morals of the young”—was legitimate.16 The Court then determined that the
measures used were sufficiently “necessary” to pursue that aim, and it
ultimately concluded that no violation of the European Convention had taken
place.17

The result in Handyside
was not an aberration. Just six years later, the HRC reached a similar
conclusion in Hertzberg v. Finland.18The complainants in Hertzberg had produced or appeared in television or radio programs related
to homosexuality—programs that were censored by the state-controlled Finnish
Broadcasting Company.19 In its ruling, the HRC noted that

public morals differ widely. There is no universally
applicable common standard. Consequently, in this respect, a certain margin of
discretion must be accorded to the responsible national authorities.

The Committee finds that it cannot
question the decision of the responsible organs of the Finnish Broadcasting Corporation
that radio and TV are not the appropriate forums to discuss issues related to
homosexuality, as far as a programme could be judged as encouraging homosexual
behaviour. . . . In particular, harmful effects on minors cannot be excluded.20

In Hertzberg and Handyside,
then, influential human rights bodies recognized that states have an interest
in protecting children and determined that this interest in child protection
outweighed the expressive rights of adults with regard to public information
about sex and sexuality. In the 1970s and 1980s, child-protective rationales
for restrictions on LGBT advocacy were not simply plausible, but decisive
as a matter of human rights doctrine. Both decisions suggested supranational
bodies were prepared to give wide latitude to states where issues of
moral—which usually meant sexual—regulation were concerned.

When Handyside and Hertzberg were decided, sexual rights
were virtually unrecognized as a category of human rights law. Today, women’s
rights and LGBT rights claims have gained ground at the domestic level and also
have been increasingly recognized by supranational bodies.21In Dudgeon v. United Kingdom, decided in 1981, the ECtHR ruled that
Northern Ireland’s sodomy law violated the European Convention’s guarantee of
privacy.22 The Court’s analysis in Dudgeon
was echoed in 1988, when the ECtHR struck down a sodomy law on similar
grounds in Norris v. Ireland.23 The HRC confronted its own sodomy law challenge in 1994,
ultimately ruling in Toonen v. Australia
that Tasmania’s sodomy law was an invasion of privacy.24 Each of these decisions established that LGBT individuals had
some rights that could not be infringed in the name of an alleged public good.

It is
sometimes assumed that later sexual rights decisions implicitly repudiated Handyside and Hertzberg, by virtue of removing morality from the sole purview of
states and exposing it to supranational scrutiny.25 Yet the “margin of appreciation”—Handyside’s term for the degree of
discretion that states enjoy in fulfilling their obligations under the European
Convention, particularly on issues of morality, national security, and public
order26—remains a tenet of supranational
human rights jurisprudence. Handyside continues
to be cited by the ECtHR,27 and the issues Handyside and Hertzberg
decided are in many ways broader than the narrow sodomy law question posed by Toonen, Dudgeon, and Norris.
Recent decisions on child-protective laws, which I discuss below, have
underscored the unresolved questions in these lines of canonical human rights
cases. Collectively, the cases establish a strong right to sexual privacy, but
they potentially leave states a wide berth to regulate public expressions of
sexuality, particularly when children may witness them.28 Under this interpretive synthesis,
the proper balance between child protection and the rights of LGBT individuals
remains an open question.

II. balancing
child-protective rationales and sexual rights

Although various European organs
have spoken out against the passage of Russia’s federal propaganda law, neither
the ECtHR nor the HRC has yet ruled on its legality. The bodies have, however,
addressed other regional and municipal child-protective laws, also passed in
Russia. These decisions—Alekseyev v. Russia and Fedotova v. Russian Federation—offer reasons why propaganda
laws may violate human rights guarantees, and therefore may be indicative of
how the ECtHR and the HRC might approach Russia’s recent federal legislation.
Both cases suggest supranational bodies rely too heavily on the presentation of
empirical proof, and illustrate the importance of a more holistic analysis.

In Alekseyev v. Russia,
the ECtHR considered a claim that banning LGBT parades in Moscow infringed upon
Article 11 of the European Convention.29 Russian officials claimed they were
worried about both public order and public morality.30
The state argued that LGBT parades should be understood as public displays of
sexuality to which children and other unwilling viewers might be exposed.31
The ECtHR disagreed. It stressed that “the participants had not intended to
exhibit nudity, engage in sexually provocative behaviour or criticise public
morals or religious views.”32 On that
basis, the Court distinguished the case from precedents like Müller v. Switzerland, where the display
of obscene artwork justified restrictions of expression, in part because the artwork
would be visible to the public without any age limit.33
The Court then explained that while European countries had not reached a
consensus on all substantive questions of LGBT equality—for example, same-sex
marriage and adoption—there was a
consensus that LGBT persons enjoyed freedom of peaceful assembly. Such a
consensus narrowed the margin of appreciation afforded to Russia and justified
supranational review.34

Having made these findings, the Court reiterated “that any
decision restricting the exercise of freedom of assembly must be based on an
acceptable assessment of the relevant facts.”35
The Court emphasized that the state had failed to provide actual evidence that
mentioning or debating homosexuality or the status of LGBT people would
adversely affect children.36 Without proof
that the restriction at hand was necessary to protect youth, the Court determined
“the authorities’ decisions to ban the events in question were not based on an
acceptable assessment of the relevant facts.”37
The Court therefore concluded the bans had violated Alekseyev’s freedom of
assembly under the European Convention.38
Although the Court invalidated a ban on assertions of LGBT rights in the public
sphere, it did so primarily because the government had failed to provide
sufficient evidence, and not because such bans inherently violate human rights.

Shortly after Alekseyev,
the HRC confronted the regional law prohibiting homosexual propaganda in the
Russian oblast of Ryazan. In Fedotova v. Russian Federation, the
claimant had been convicted by a court in Russia for exhibiting posters that
said “Homosexuality is normal” and “I am proud of my homosexuality” near a
secondary school, and was fined 1,500 roubles.39 The HRC found the law contravened
the International Covenant on Civil and Political Rights, concluding that Russia
had failed to show that restricting propaganda regarding homosexuality, but not
heterosexuality or sexuality generally, was the product of “reasonable and
objective” criteria.40 Like Alekseyev’s demand for more evidence
that LGBT advocacy hurt children, the ruling in Fedotova was equivocal.The
decision “recognize[d] the role of the State party’s authorities in protecting
the welfare of minors” and suggested that a determination of necessity should
be made based on the facts of the case.41
Like the ECtHR, the HRC observed in its reasoning “that the State party has not
shown that a restriction on the right to freedom of expression in relation to
‘propaganda of homosexuality’—as opposed to propaganda of heterosexuality or
sexuality generally—among minors is based on reasonable and objective
criteria.”42
The HRC did not articulate what kind of distinctions it would consider
sufficiently “objective” or “reasonable” to validate bans on LGBT advocacy. Nor
did it indicate why a ban on all public discussions of sexuality, however
even-handed and nondiscriminatory, would still violate fundamental human rights
guarantees.

Although Fedotova
reflects skepticism toward the kinds of laws that have now been federally
instituted in Russia, it does not provide an especially rigorous account of why
these laws might be invalid, particularly in light of precedents like Hertzberg and Handyside. The HRC pointedly suggested that Fedotova “ha[d] not
made any public actions aimed at involving minors in any particular sexual
activity or at advocating any particular sexual orientation,” laying to rest
any fears of seduction or recruitment.43
The Committee determined she was merely “giving expression to her sexual
identity and seeking understanding for it.”44
The HRC affirmed the state’s interest in protecting minors, but ultimately
found it was not strong enough, in this particular case, to deny Fedotova her
own freedom of expression. Like Alekseyev,
Fedotova deemed restrictions on
advocacy invalid, but did so on fairly tentative grounds.

Alekseyev and Fedotova invalidated restrictions on
LGBT advocacy, but neither case fully explains why such restrictions inherently
violate human rights. Decades after Handyside,
Hertzberg, Dudgeon, Norris, and Toonen, these decisions do little to
define the relationship between the state’s interest in protecting children and
the human rights of LGBT persons. As child-protective rationales enjoy a
resurgence in Eastern Europe and sub-Saharan Africa, a more holistic assessment
is needed to define the human rights at stake in these debates.

The debate over child-protective laws and sexual rights tends
to pit the power of the state against the individual rights of LGBT persons.
Few advocates—on either side—have foregrounded the rights of children, which
are codified domestically in constitutions and statutes and enshrined
internationally in supranational agreements like the Convention on the Rights of
the Child (CRC).45
In Alekseyev and Fedotova, for example, the state’s interest in protecting children
was simply weighed against the rights of LGBT individuals, and the rights of
the child were not asserted or discussed at any length.46
As I argue in this Part, however, propaganda laws infringe the established
rights of children, and recognizing this fact illuminates why they should be
treated as presumptively invalid under human rights law.

The growth of children’s rights jurisprudence has accelerated
dramatically since the 1970s, in parallel with the emergence of sexual rights.
Children now enjoy widely recognized rights that courts have imbued with increasingly
detailed meaning and content. When the new homosexual propaganda laws begin to
reach the ECtHR and HRC, these rights should be included in the analysis of the
rights that are infringed when the state purports to protect children.

Under the CRC, children enjoy a right to freedom of
expression, including the right to “receive and impart information and ideas of
all kinds,” enshrined in Article 13,47 as well as a related right of
“access to information,” enshrined in Article 17.48 Both rights create a presumption that the
state should not shield children from information without a strong justification
for doing so. The conditions for overriding this presumption are narrow
and specific. Article 13(2)(b) allows the child’s right to expression to be
curtailed when this is necessary to protect public morals,49
while Article 17(e) specifies that states should protect each child “from
information and material injurious to his or her well-being.”50

The heart of the debate over child-protective laws, in many
ways, revolves around the extent to which states have latitude to define
“public morals” and “well-being” in this context. As Toonen, Dudgeon, and Norris all demonstrate, supranational
bodies have declined to give states free rein to police the sexual morality of
relationships between consenting adults.51These bodies have not, however, defined
the permissible scope of morals legislation targeted at children. In contrast,
the Committee on the Rights of the Child has fleshed out the concept of harmful
information through its practice over time. It has defined harmful information
through examples, like “pornographic materials and materials that portray or
reinforce violence, discrimination and sexualized images of children,”52
and “pornographic material and material that promotes xenophobia or any other
form of discrimination and could potentially reinforce prejudices.”53
The Committee’s emphasis on discrimination, pornography, and violence reflects
the concerns of Article 17(e)’s drafters, who sought to shield children from
the promulgation of “apartheid, racist theories and ideologies and the like,”54
and not to suppress age-appropriate information about sex education,
discussions of pregnancy and HIV/AIDS, and LGBT advocacy.55

If individual rights are to have meaning, states should not
be permitted to define standards such as “morality” and “harmful information”
as they see fit. Rather, supranational bodies should hold states accountable
after surveying the degree of consensus among states and reasoning from first
principles of necessity, democracy, and proportionality. As I discuss below,
international bodies increasingly acknowledge that the right to information
about sexuality, including homosexuality, is a critical part of children’s
right to information. In addition, advocates have widely endorsed the
imposition of procedural standards in defining morality and harmful
information, such as requiring transparency, participation of children
themselves, participation of NGO networks, and a role for supranational bodies.56Both developments undermine state assertions
that it is their prerogative to label information about sexuality “harmful” for
children.

Indeed, children’s right to receive and impart information
related to sexuality has been endorsed by the authoritative supranational body
working on children’s rights.57 In General Comment 4 on Adolescent Health and
Development, the Committee on the Rights of the Child clarified:

It is the obligation of States parties to ensure that
all adolescent girls and boys, both in and out of school, are provided with,
and not denied, accurate and appropriate information on how to protect their
health and development and practise healthy behaviours. This should include
information on the use and abuse, of tobacco, alcohol and other substances,
safe and respectful social and sexual behaviours, diet and physical activity.58

In General Comment 12, the Committee reiterated that the right to
information is a prerequisite to the exercise of the right to be heard, and
that such information is conveyed in large part through the media.59
When a state bars public discussion of homosexuality in the media, it bars
children from exercising both their right to information and their right to be
heard.

Laws prohibiting
homosexual propaganda violate not only children’s rights to impart and receive
information, but also potentially the right to education under the CRC.60General Comment 3 extends to the realm of education, requiring that
“States parties must ensure that children have the ability to acquire the
knowledge and skills to protect themselves and others as they begin to express
their sexuality.”61 U.N. Special Rapporteur on the Right to Education Vernor Muñoz has opposed homosexual propaganda laws
on this ground, emphasizing in particular that children have a right to access
sexual and reproductive education.62 Violations of the rights to information and education are particularly
acute for LGBT children, who are largely absent from legislative debates but bear
the brunt of laws that prevent any discussion of LGBT sexuality.

The right to education is of crucial importance in light of
HIV/AIDS and sexual health concerns, especially for young gay men and
transgender people. As the Committee on the Rights of the Child’s General Comment 3 on HIV/AIDS and the Rights
of the Child notes:

State obligation to realize the right to life,
survival and development also highlights the need to give careful attention to
sexuality as well as to the behaviours and lifestyles of children, even if they
do not conform with what society determines to be acceptable under prevailing
cultural norms for a particular age group. . . . Effective prevention
programmes are only those that acknowledge the realities of the lives of
adolescents, while addressing sexuality by ensuring equal access to appropriate
information, life skills, and to preventive measures.63

If protecting children is understood
to require the protection of all children,
including LGBT children, then frank and open discussion about homosexuality,
sexual health, and LGBT rights is recast as an asset rather than a liability.64

When children’s rights are factored into evaluations of
child-protective laws, the rights-restricting effects of these initiatives are
even more apparent. Proponents of these laws argue that, although the laws may
limit the rights of LGBT persons, they are justified because they safeguard the
interests of children. Opponents reject this argument and insist that
child-protective laws’ dubious impact on the morality of children is grossly
outweighed by the dramatic and immediate constraints that these laws place on
the rights of LGBT persons. The calculus shifts considerably, however, if we
recognize that children’s rights to expression, information, and education are
imperiled when LGBT issues cannot be discussed publicly.65
Laws prohibiting gay propaganda hamper the rights of not only LGBT persons, but
also of children themselves. By recognizing that fact, it becomes evident that
such laws do not really protect children at all.

Conclusion

The idea of a tension between protecting children and
recognizing sexual rights in the public sphere has produced explosive conflicts
in domestic and transnational legal systems—and yet, amid conflicting
precedents from the late 1970s onward, supranational bodies have not
articulated an overarching principle to resolve these competing assertions of
rights. The emergence of Russia’s law offers a unique opportunity for human
rights defenders to articulate the proper relationship between the state’s
interest in protecting children and the human rights of LGBT persons. When
children’s rights are added to the balance alongside the state’s interest in
child protection and the rights of LGBT persons, the analysis changes. The
state’s avowed interest in protecting children is weakened by the recognition
that children’s rights are infringed in the process.

As child-protective laws proliferate, both sides will likely
make common-sense appeals to the protection of children and the protection of
rights, each of which has firm foundations in human rights jurisprudence. To
avoid talking past each other, activists and legislators must turn to
frameworks that can systematically synthesize and balance these competing
views. A holistic analysis that takes the good-faith views of all parties
seriously can affirm that the state has a genuine interest, and perhaps good
intentions, in its efforts to protect children. At the same time, such an
approach gives credence to more recent developments in sexual rights and
children’s rights law, which make clear that such efforts can be severely
rights-restricting for children as well as LGBT persons. Taking the wider
repercussions of these laws into account underscores the point that
child-protective bans on LGBT advocacy are a counterproductive and
impermissible means to achieve child-protective ends.

Anita Bryant’s “Save our Children” campaign, which led to the repeal of a Dade County ordinance prohibiting discrimination on the basis of sexual orientation, heavily relied on child-protective rhetoric. William N. Eskridge, Jr., No Promo Homo: The Sedimentation of Antigay Discourse and the Channeling Effect of Judicial Review, 75 N.Y.U. L. Rev. 1327, 1351-52 (2000). After its passage, similar arguments were used successfully elsewhere. Id. at 1352-53. California’s Briggs Initiative of 1978, which ultimately failed, would have prohibited “the advocating, soliciting, imposing, encouraging or promoting of private or public homosexual activity directed at, or likely to come to the attention of, schoolchildren and/or other employees.” Cal. Proposition 6, § 3(b)(2) (1978). In Margaret Thatcher’s Britain, Section 28 was enacted in 1988 to ensure that local authorities “shall not . . . intentionally promote homosexuality or publish material with the intention of promoting homosexuality” or “promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship.” Local Government Act, 1988, c. 9, § 28(1) (U.K.), http://www.legislation.gov.uk/ukpga/1988/9/pdfs/ukpga_19880009_en.pdf [http://perma.cc/E4KG-7JU3]. Section 28 remained law until it was repealed in Scotland in 2000 and the rest of Great Britain in 2003. Local Government Act, 2003, c. 26, §§ 122 & 127, sch. 8, pt. 1 (U.K.), http://www.legislation.gov.uk/ukpga/2003/26/pdfs/ukpga_20030026_en.pdf [http://perma.cc/5PAS-L3Y8].

See, e.g., Russia: Anti-LGBT Law a Tool for Discrimination, Hum. Rts. Watch (June 30, 2014), http://www.hrw.org/news/2014/06/29/russia-anti-lgbt-law-tool-discrimination [http://perma.cc/6Z7E-8BXC] (quoting Hugh Williamson, the Europe and Central Asia Director at Human Rights Watch, as saying, “it has been clear from the start that this law was not conceived out of concern for children . . . . This law only jeopardizes the safety and rights of Russia’s LGBT community, and it should be immediately repealed.”). Activists point to the example of Dmitry Isakov, the first person convicted under the law, who was arrested in Kazan on July 30, 2013 for protesting while holding a sign that said, “Being gay and loving gays is normal. Beating gays and killing gays is a crime!” See Sunny Peter, Anti-Gay Violence in Moscow, Int’l Bus. Times, Oct. 14, 2013, http://au.ibtimes.com/articles/513527/20131014/russia-lgbt-gay-rights-violence-pride-rally.htm [http://perma.cc/5Q4L-9JTT].

12

The HRC was established under the International Covenant on Civil and Political Rights (ICCPR). It hears complaints from individuals from the 115 states parties that have ratified the First Optional Protocol to the ICCPR and issues judgments that are non-binding but widely understood to be authoritative interpretations of the ICCPR. See Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171.

13

The ECtHR was established under the European Convention on Human Rights. It hears complaints from both individuals and states from the forty-seven member states of the Council of Europe, and it issues binding judgments that are treated as precedent by the Court. See The ECHR in 50 Questions, Eur. Ct. Hum. Rts. 4, 6, 9 (2014), http://www.echr.coe.int/Documents/50Questions_ENG.pdf [http://perma.cc/9Z3E-SEPT].

The Convention on the Rights of the Child, which came into force in 1990, is among the most widely ratified human rights agreements in history. The 194 parties to the Convention include all UN states except the United States, South Sudan, and Somalia. The Committee on the Rights of the Child is a body of experts that reviews periodic reports from states parties and issues General Comments. Although these are not binding, they constitute authoritative guidance regarding interpretation of, and adherence to, the CRC. SeeFact Sheet No. 10 (Rev.1), The Rights of the Child, Off. High Commissioner for Hum. Rts., http://www.ohchr.org/Documents/Publications/FactSheet10rev.1en.pdf [http://perma.cc/6FLK-C44F]; see also Committee on the Rights of the Child, Off. High Commissioner for Hum. Rts., http://www.ohchr.org/EN/HRBodies/CRC/Pages/CRCIndex.aspx [http://perma.cc/YJR8-XHQK] (providing an overview of the activities of the Committee).

46

Notably, the International Commission of Jurists filed a brief in Fedotova that expressly raised the rights of children; it stressed that children have a recognized right to receive age-appropriate information about sexuality. Legal Opinion of Int’l Comm’n of Jurists on Section 3.10 of the Ryazan Oblast Law ¶¶ 30-33, Fedotova v. Russian Fed’n, Comm. No. 1932/2010, ¶¶ 2.2-2.3, U.N. Doc. CCPR/C/106/D/1932/2010 (Oct. 31, 2012), http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2012/06/Russian-Federation-ICJ-opinion-legal-submission-2010.pdf [http://perma.cc/WK7F-ARPY]. Although the HRC noted this argument in the descriptive section of the decision, see Fedotova, U.N. Doc. CCPR/C/106/D/1932/2010, ¶¶ 5.13-5.14, it avoided any mention or discussion of the rights of children in its reasoning on the merits.

47

“The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.” Convention on the Rights of the Child art. 13, opened for signature Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC].

48

“States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.” Id. art. 17.

There is a paucity of analysis, by both supporters and opponents of homosexual propaganda laws, on what it means for information to be “age-appropriate.” At the very least, opponents of these laws have argued, children reaching the age of sexual maturity should be equipped with the knowledge about their bodies and their sexuality necessary to protect themselves and others, particularly in the context of pregnancy, STIs, and HIV/AIDS. See infra notes 62-63 and accompanying text.

56

See Access Denied: Protect Rights—Unblock Children’s Access to Information, Child Rts. Int’l Network 3 (2014), https://www.crin.org/sites/default/files/access_to_information_final_layout.pdf [http://perma.cc/Y4TA-66EX] (“Where restrictions do exist, they should be transparent, adhere to all children’s rights and be determined with input from civil society and children themselves.”); International Technical Guidance on Sexuality Education: The Rationale for Sexuality Education, United Nations Educ., Sci. & Cultural Org.32(2009),http://unesdoc.unesco.org/images/0018/001832/183281e.pdf [http://perma.cc/9D3N-UCYJ] (noting that the International Conference on Population and Development Programme of Action calls for state collaboration with NGOs in developing sexual and reproductive health programming).

57

Of course, such a conclusion does not mean that any restrictions on information fail a proportionality test. Laws protecting children from pornography, for example, serve a proper purpose, bear a rational connection to that aim, and can be necessary to achieve it. See Aharon Barak, Proportionality: Constitutional Rights and Their Limitations 3 (2012). When the balancing test is reached, see id., the marginal interest in protecting children from pornography—which may affect their moral development, distort their views of gender equality, or violate their dignity—far outweighs any rights that minors might claim to viewership. Unlike LGBT advocacy, the pornography example involves a widely recognized detriment to minors, a kind of information that has little to no benefit for children, and no disparaged minority population whose rights are meaningfully infringed by the child-protective law.

Special Rapporteur on the Right to Education, Promotion and Protection of Human Rights: Human Rights Questions, Including Alternative Approaches for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms, transmitted by Note of the Secretary-General, ¶¶ 79-84, U.N. Doc. A/65/162 (July 23, 2010) (by Vernor Muñoz), http://documents.un.org/welcome.asp?language=E [http://perma.cc/RM34-X3B9] (click “Advanced Search;” in the search field labeled “symbol” insert the document symbol, “A/65/162,” and click “Search;” click on the link associated with the symbol number; then select the desired document language and file format); Special Rapporteur on the Right to Education, Human Rights Council, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, U.N. Doc. A/HRC/8/10/Add.1 (May 13, 2008) (by Vernor Muñoz), http://www2.ohchr.org/english/bodies/hrcouncil/docs /8session/A.HRC.8.10.Add1.doc [http://perma.cc/RA46-6HA4]. Other Special Rapporteurs—human rights experts who monitor and report on specific country-based or thematic mandates—have similarly spoken out against homosexual propaganda bans, including the Special Representative of the Secretary-General on the Situation of Human Rights Defenders and the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. See Int’l Comm’n of Jurists & ILGA-Eur., supra note 9, at20 n.45.

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Comm. on the Rights of the Child, supra note 61, ¶ 11.

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Efforts to protect children almost inevitably assume that those children are straight and rarely ask what would best protect children who are LGBT. See Clifford J. Rosky, Fear of the Queer Child, 61 Buff. L. Rev. 607, 609-10 (2013) (documenting the pervasive fear of children becoming gay and noting that the LGBT movement’s tepid response “entertains the troubling assumption that queerness is immoral, harmful, or inferior, and thus that the state may legitimately discourage children from being or becoming queer”); Teemu Ruskola, Minor Disregard: The Legal Construction of the Fantasy that Gay and Lesbian Youth Do Not Exist, 8 Yale J.L. & Feminism 269, 270 (1996) (identifying a widespread assumption that all children are heterosexual and stressing that “[t]he consequence of the fantasy of gay kids’ non-existence is the discursive and material violence that gay kids confront in their lives”).

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The Siracusa Principles, a soft law instrument drafted by human rights experts in 1984, illustrate why such a paradigm shift is potentially important. See U.N. Econ. & Soc. Council, Status of the International Covenants on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4, Annex (Sept. 28, 1984), http://documents.un.org/welcome.asp?language=E [http://perma.cc/RM34-X3B9] (click “Advanced Search;” in the search field labeled “symbol” insert the document symbol, “E/CN.4/1985/4,” and click “Search;” click on the link associated with the symbol number; then select the desired document language and file format). The Principles permit states invoking public morality “a certain margin of discretion,” id. at 5, but also dictate that “any restrictions be consistent with other rights recognized in the Covenant,” id. at 3. Broadening the inquiry beyond a right and its limitation to the adverse effects the limitation has on other rights illustrates why many restrictions should be considered presumptively invalid.

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*I am grateful to Aharon Barak, Alice Miller, Graeme Reid, Judith Resnik, and Reva Siegel for conversations and insights that enriched this project, and to Whitney Angell Leonard, Emily Barnet, and Rachel Bayefsky for their very thoughtful editing.